Sammi & Anr. vs State
2015 Latest Caselaw 3369 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                  RESERVED ON : MARCH 24, 2015
                                  DECIDED ON : APRIL 27, 2015

+      CRL.REV.P.565/2014

       SAMMI & ANR.                                       ..... Petitioners
                             Through :   Mr.Vimal Puggal, Advocate.

                             versus
       STATE
                                                          ..... Respondent
                             Through :   Mr.Navin K.Jha, APP.
                                         SI Sumer Chand, PS Nabi Karim.
        CORAM:
        HON'BLE MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. Petitioners Sammi and Ved Parkash @ Lekhu were convicted

under Section 392/34 IPC by a judgment dated 22.03.2014 of learned

Metropolitan Magistrate (Central), Tis Hazari and were awarded RI for

three years each. It is relevant to note that Subhash-petitioners' associate

was also convicted by the said judgment. It is unclear if he has filed any

revision petition. The petitioners challenged their conviction and sentence

in Crl.A.No.62/2014 which was dismissed by an order dated 20.08.2014.

Being aggrieved by the impugned orders, the petitioners have filed the

instant revision petition.

2. Briefly stated, the allegations against the petitioners and their

associate Subhash were that on 10.05.2009 at around 10.45 p.m., at DBG

Road in front to Today Hotel, they in furtherance of their common

intention, robbed complainant Vinod Kumar of his mobile after putting

him in fear. On 10.05.2009 when Vinod Kumar and his friend Raju were

coming to their house after finishing work and reached near Today Hotel

at around 10.45 p.m., three boys came and intentionally pushed them.

They started abusing them and told that 'Saalo dekh kar nahin chal sakte'.

In the meanwhile, one of them caught Vinod Kumar by his collar and

started shaking him. In the process, the said assailant took out his mobile

phone kept in the upper pocket of the shirt. The other two assailants gave

beatings to him and his friend with fists and slaps. The assailants fled the

spot. On raising alarm, two of them were apprehended near the spot and

were thrashed by the public. Vinod Kumar lodged complaint (Ex.PW-

1/A) and the Investigating Officer registered the case. During

investigation, the third assailant was arrested and identified in Test

Identification Proceedings by the complainant. Statements of the

witnesses conversant with the facts were recorded. After completion of

investigation, a charge-sheet was filed against the petitioners and their

associate. The prosecution examined eleven witnesses to substantiate its

case. In 313 statement, the accused persons denied their involvement in

the crime without producing any witness in defence. The trial resulted in

their conviction as aforesaid.

3. The instant case was lodged on the complaint of complainant

Vinod Kumar (Ex.PW-1/A) in which he gave detailed account of the

occurrence. He gave vivid description as to how and under what

circumstances, he was robbed of his mobile make Sony Ericsion. He also

disclosed that the assailants Shammi and Subhash were apprehended near

the spot and their associate Ved Parkash @ Lekhu succeeded to flee the

spot. In his Court statement as PW-1, Vinod Kumar proved the version

given to the police at the first instance without any variation. He

identified the assailants in the court and attributed specific role to each of

them in depriving him of his mobile while using criminal force. PW-3

(Raju) who had accompanied the complainant corroborated his version in

its entirety and implicated the assailants including the petitioners to be the

perpetrators of the crime. Despite lengthy cross-examination, no material

infirmities could be extracted in their cross-examination. No sound

reasons exist to disbelieve the statements of the victim and his associate as

they were not acquainted with the petitioners prior to the incident. They

did not nurture any grievance or ill-will to falsely rope them in the

incident. The mobile phone snatched was recovered at the spot and was

duly identified by the complainant. The concurrent findings of fact

recorded by the courts below are based upon fair appreciation of the

evidence. No infirmity or irregularity has been pointed out.

4. The main emphasis of the petitioners' counsel is that

ingredients of Section 392 IPC are not attracted in this case as it was a

simple case of 'theft' or 'snatching' covered under Sections 379/356 IPC.

I find no merit on this aspect. The complainant and his associate have

categorically deposed that even before committing theft and depriving

them of mobile, they were abused and wrongfully confined by the

assailants. They caught hold of the complainant's collar and started

shaking him. They intentionally pushed both of them; abused them and

uttered 'Saalo dekh kar nahin chal sakte'. Subsequent to that, the

complainant was robbed of his mobile without his consent. Not only that,

two of the assailants gave beatings to the complainant and his friend Raju

by fists and slaps. Apparently, criminal force was used and the victims

were wrongfully confined before committing theft of the mobile phone.

5. Offence under Section 356 falls under Chapter XVI of the

Penal Code which deals with the offences affecting the human body;

contrary to that, Section 390 IPC punishable under Section 392 IPC falls

under Chapter XVII of the Penal Code which deals with offences against

property. Evidently, under Section 356 IPC, primacy has been given to

the offence of assault in an attempt to commit a theft of property carried

by a person. Such an attempt is a circumstance that aggravates the

offence of assault. Under Section 392 IPC, primacy is given to the

offence of taking away the property/goods without consent when violence

or force which includes wrongful restraint is caused or attempted in order

to commit theft. Robbery is a special and aggravated form of either theft

or extortion. 'Robbery' means a felonious taking from the person of

another or in his presence against his will, by violence or putting him in

fear. The chief distinguishing element in robbery is the presence of

imminent fear of violence. The Section contemplates that the accused

should have, from the very beginning, the intention to deprive the

complainant of the property, and should for that purpose either hurt him or

place him under wrongful restraint.

6. In the instant case not only the complainant and his associate

were wrongfully confined / restrained, criminal force was also used to

cause hurt to them. All the ingredients of Section 392 IPC are attracted in

this case. In Harish Chandra vs.State of U.P. AIR 1976 SC 1430 in

similar circumstances, the passenger was relieved of his wrist watch

forcibly and when the complainant raised alarm, the appellant Harish

Chandra slapped him and his other companions hit him with a stick.

Hon'ble Supreme Court upheld the conviction recorded under Section 390

IPC. It observed that according to Section 390 IPC, 'theft' is robbery, if

in order to committing of the theft or in committing the theft, or in

carrying away or attempting to carry away property obtained by theft, the

offender, for that and, voluntarily causes or attempts to cause hurt. The

evidence was quite sufficient to show that after Avinash Kumar had been

relieved of his watch by the accused Ram Avtar, he (Avinash Kumar)

raised an alarm and the appellant Harish Chandra slapped him to enable

him to carry away the stolen watch. The hurt which was thus caused to

Avinash Kumar clearly fell within the purview of Section 390 IPC.

7. In the light of the above discussion, I find no merit in the

revision petition and the same is dismissed. Trial Court record be sent

back forthwith along with the copy of this order. Intimation be sent to the

concerned Jail Superintendent.

(S.P.GARG) JUDGE APRIL 27, 2015/sa